Citation Nr: 1117528
Decision Date: 05/06/11 Archive Date: 05/17/11
DOCKET NO. 10-05 300 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming
THE ISSUES
1. Entitlement to an evaluation in excess of 20 percent for the left knee disability.
2. Entitlement to service connection for a psychiatric disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Hannan, Counsel
INTRODUCTION
The appellant served on active duty in the United States Army from June 1989 to August 1992, when she was medically discharged.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO).
The Board recognizes that the RO up to the present has developed and adjudicated the claim with regard to the issue as it was framed by the Veteran, i.e., a claim seeking service connection for depression. The evidentiary record also indicates a diagnosis of bipolar disorder which was also considered by the RO.
The U.S. Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). In compliance with the Court's holding, the Board has recharacterized the issue as reflected on the first page of the present decision.
In May 2010, the Veteran testified at a videoconference hearing at the RO, before the undersigned Veterans Law Judge. Her mother, [redacted], was present but did not testify. A transcript is associated with the claims file.
In connection with that videoconference hearing, the appellant submitted additional evidence concerning her claim. This evidence consisted of copies of VA medical records dated between 2006 and 2010, as well as the report from the May 2010 VA medical examination of her left knee for compensation purposes. The appellant has submitted a written waiver of initial review of that evidence by the RO. Therefore referral to the RO of the evidence received directly by the Board is not required. 38 C.F.R. § 20.1304.
The issue of entitlement to service connection for a psychiatric disorder is addressed in the REMAND portion of the decision below and that issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required.
FINDINGS OF FACT
1. There is no evidence of ankylosis of the left knee.
2. Throughout this appeal, there is no evidence of limitation of flexion to 60 degrees or of limitation of extension to 5 degrees in the left knee.
3. There is no evidence of impairment of the left tibia and fibula, and the appellant has not had any left knee replacement surgery.
4. Throughout this appeal, no more than slight lateral subluxation or instability has been clinically demonstrated in the appellant's left knee.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 20 percent for the service-connected left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103(a), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5055, 5256-5263, 7800-7805 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2010). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.
In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). See Dingess v. Nicholson, supra.
In December 2008, prior to the promulgation of the April 2009 rating action that, in part, denied the appellant's claim of entitlement to an evaluation in excess of 20 percent for the left knee disability, the RO sent the appellant a letter informing her of the types of evidence needed to substantiate her increased rating claim and its duty to assist her in substantiating her claim under the VCAA. The letter informed her that VA would assist her in obtaining evidence necessary to support her claim, such as medical records, records from other Federal agencies, etc. She was advised, under 38 C.F.R. § 3.159(b)(1), that it is her responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to her claim.
The appellant has had ample opportunity to respond/supplement the record and she has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). The United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, neither the Veteran nor her representative has alleged any prejudicial or harmful error in VCAA notice, and the Board finds, based the factors discussed above, that no prejudicial or harmful error in VCAA notice has been demonstrated in this case.
VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, the appellant's service treatment records (STRs) have been associated with the claims file. Private and VA outpatient medical treatment records have also been associated with the claims file. The appellant was afforded VA medical examinations of her left knee in March 2009 and May 2010. A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Each one of these examinations was conducted by a medical professional, and the associated reports reflect review of the appellant's prior medical records. The examinations included reports of the symptoms for the left knee disability and demonstrated objective evaluations. The examiners were able to assess and record the condition of the appellant's left knee.
The Board finds that the examination reports are sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. In addition, it is not shown that the examinations were in any way incorrectly prepared or that the VA examiners failed to address the clinical significance of the appellant's claimed left knee disability. Further, the VA examination reports addressed the applicable rating criteria. As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. § 3.326 and 38 C.F.R. § 3.327 and Green v. Derwinski, supra. Therefore, the Board concludes that the appellant was afforded adequate examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).
The Board finds that the information provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the April 2009 rating decision, along with the December 2009 Statement of the Case (SOC), explained the basis for the RO's action, and provided her with opportunities to submit more evidence. It appears that all obtainable evidence identified by the appellant relative to her claim has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices.
In addition, to whatever extent the decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision. The December 2008 letter from the RO contained the information required by Dingess.
Furthermore, the appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide, and she was supplied with the text of 38 C.F.R. § 3.159. The appellant did not provide any information to VA concerning available relevant treatment records that she wanted the RO to obtain for her that were not obtained. She had previously been given more than one year in which to submit evidence after the RO gave her notification of her rights under the pertinent statute and regulations.
The appellant was provided with notice as to the medical evidence needed for increased evaluations for knee disabilities, as well as the assistance VA would provide. Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
All relevant facts with respect to the claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).
II. The Merits of the Claim
In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The law provides that disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the appellant or not, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. In this case the evidence reviewed includes the appellant's private and VA medical treatment records dated between 2006 and 2010; the reports of the VA medical examinations conducted in March 2009, and May 2010; the appellant's Travel Board hearing testimony; and various written statements submitted by the appellant and her representative.
While a veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence of record contains factual findings that demonstrate distinct time periods in which the claimant's service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.
Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20.
Except as otherwise provided in the Rating Schedule, all disabilities, including those arising from a single entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25. One exception to this general rule, however, is the anti-pyramiding provision of 38 C.F.R. § 4.14, which states that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided.
In Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that the described conditions in that case warranted 10 percent evaluations under three separate diagnostic codes, none of which had a rating criterion the same as another. The Court held that the conditions were to be rated separately under 38 C.F.R. § 4.25, unless they constituted the "same disability" or the "same manifestation" under 38 C.F.R. § 4.14. Esteban, at 261. The critical element cited was "that none of the symptomatology for any one of those three conditions [was] duplicative of or overlapping with the symptomatology of the other two conditions." Id. at 262.
Pursuant to regulatory provisions, degenerative arthritis established by radiographic imaging/X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. A claimant's limitation of motion must be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the diagnostic code, a 10 percent rating is for assignment for each major joint affected. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010.
Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40.
The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).
The appellant testified at her May 2010 videoconference hearing that she had most recently undergone surgery on her left knee in 2006. She reported experiencing falls due to her knee disability. The appellant testified that she utilized pain medications, ice and elevation of the knee for treatment. She also reported three injections. She said that she wears a knee brace for instability, although it did not always secure the knee. The appellant further testified that she was employed at a desk job, although sometimes her knee locked when she went to get up from her desk. She stated that her knee sometimes clicked, popped and moved. The appellant also stated that she was unable to go even 50 or 60 steps when walking; that she could only drive for 45 to 60 minutes; that she could only climb four to five stairs and needed a handrail; and that she experienced instability. She said that her knee would swell every couple of days.
Review of the private medical evidence of record reveals that the appellant has been treated at an orthopedic clinic. In December 2008, she described pain when she walked, when she went hunting and particularly when she went up and down hills. On physical examination, her patella tracked perfectly. There were well healed surgical incisions. There was some patella facet tenderness and some discomfort with pain, crepitus and patella grind. Lachman's test was negative. The anterior and posterior drawer testing was negative. There was no excess varus or valgus instability. There was pain with McMurray testing, but there was no catching. Ten days later, the MRI of the appellant's left knee was said to be essentially unremarkable. The appellant continued to complain of patellofemoral symptoms. A few days later, the appellant reported that she was able to get around quite well, although she said she was unable to kneel. On physical examination, she demonstrated excellent range of motion with no laxity or problem with the medial patellofemoral ligament. There was no patellofemoral crepitation with active knee flexion or extension. There was no joint line tenderness and no pain with McMurray testing. The cruciate and collateral ligaments were stable. On radiographic examination, no subluxation was noted.
The appellant underwent a VA medical examination in March 2009; the examiner reviewed the claims file. The appellant complained of swelling, popping and pain. She reported participating in physical therapy and using oxycodone once every two to three days. She said that her knee problems were exacerbated by activity such as walking for more than 20 minutes or using the treadmill. The appellant reported that she was unable to play sports, hike, run or jump. On physical examination of the appellant's left knee, there was no swelling, erythema or effusion. McMurray testing was negative. The left knee was stable for varus/valgus and anterior/posterior movement. The appellant exhibited a range of motion from full extension to 115 degrees of flexion with pain at 85 degrees. There was no change after repetitive exercise; there were no additional losses of range of motion due to painful motion, impaired endurance, fatigue, weakness, flare-ups or incoordination. The examiner rendered diagnoses of left patellofemoral pain syndrome; peripheral tear of the posterior horn of the left medial meniscus; and minimal chondromalacia.
Review of the appellant's VA treatment record reveals that she underwent injections of Synvisc into the left knee in March 2009. Radiographic examination accomplished that month revealed maintained joint spaces and no effusion. There was very minimal superior patella enthesopathy on the left. There was borderline minimal bilateral patellar subluxation. The clinical impression was that there was no acute abnormality or significant arthritic change. In May and July of 2009, the appellant reported that she continued to have left knee pain. An August 2009 physician note states that the appellant's gait was slow but normal. She was able to walk on her toes, heels and in tandem. The appellant was able to achieve a squat. Ten days later, a note indicates that the appellant had lost 30 pounds through diet and exercise. In October 2009, the appellant was afforded a neurology consultation in connection with spinal complaints. Motor testing revealed normal muscle bulk and tone. Muscle strength was 5/5 in all muscle groups. In February 2010, the appellant reported that her knee had given out; she said that it had popped and she complained of pain to touch. She also reported slight swelling and limitation of motion due to pain. In April 2010, the appellant phoned in and said that her left knee was swollen. She stated that she had walked nine miles due to being a conference for work in Las Vegas. She said that she was wearing her knee brace.
The appellant underwent another VA medical examination in May 2010. She reported continued problems with the knee slipping after the 2006 surgery. She complained of pain, weakness, stiffness, swelling, heat, redness, instability, giving way, locking and lack of endurance. The appellant said that her daily pain was 4-6/10. She said that she took pain medication and that she had a flare-up two to three times per month that lasted about a week with the pain rating 8-9/10. The precipitating factors were sitting too long in one position, stepping wrong, stooping to pick something up, and walking over 60 to 70 steps. The appellant reported the regular use of a neoprene brace. She said that once a month her knee would lock into place. She reported that she could no longer do aerobic exercise or do anything that might require standing in one place too long. On physical examination, the appellant was able to ambulate without complaints; her gait was with a limp that strongly favored the left leg. There was no evidence of muscular atrophy about the calf or thigh area. There was no swelling, joint effusion or distal edema. There was joint line/peripatellar tenderness. There was no anterior or posterior translocation. The medial and lateral collateral ligaments were normal, as were the anterior and posterior cruciate ligaments. The McMurray's test was positive on the left. The appellant demonstrated a range of motion from -5 to 130 degrees; pain began at 85 degrees. Following repetitive motion, there was an additional loss of range of motion due to painful motion as the appellant exhibited -5 to 100 degrees of motion. There were no additional losses due to pain, impaired endurance, fatigue, weakness, flare-ups or incoordination. The examiner rendered a diagnosis of left knee arthralgia with reported instability.
The potentially applicable regulations contain a number of provisions relating to the knee joint. In this case, the appellant is currently rated for instability/subluxation of the light knee. However, an evaluation in excess is not warranted based on the evidence of record. While some left knee instability has been shown, the evidence does not demonstrate that this subluxation is more than slight. Specifically, the appellant has not been diagnosed with any ligamentous instability in her left knee during the course of this appeal. Thus, a severe condition has not been clinically demonstrated by the evidence of record, and a 30 percent evaluation is not warranted for the left knee subluxation.
The VA General Counsel has issued a precedential opinion (VAOPGCPREC 23-97) holding that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003-5010 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology.
In determining whether additional disability exists, for purposes of a separate rating, a veteran must meet, at minimum, the criteria for a compensable rating under either of those codes. Cf. Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997) (assignment of zero-percent ratings is consistent with requirement that service connection may be granted only in cases of currently existing disability).
In this case, the appellant has not been diagnosed with arthritis of the left knee. However, the Board has also considered other applicable diagnostic codes. The appellant has not had a right knee replacement. Therefore DC 5055 is not for application.
Diagnostic Code 5256 provides that favorable ankylosis of a knee warrants a 30 percent evaluation. Ankylosis is considered to be favorable when the knee is fixed in full extension, or in slight flexion at an angle between zero degrees and 10 degrees. A 40 percent evaluation requires that the knee be fixed in flexion at an angle between 10 degrees and 20 degrees. The appellant does not have any left knee ankylosis. Therefore DC 5256 is not for application.
A 20 percent evaluation may be assigned where there is evidence of dislocated cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 10 percent evaluation may be assigned when there is removal of semilunar cartilage that is symptomatic. However, there is no objective clinical evidence of dislocated cartilage, with frequent episodes of locking, or effusion into the knee joint and there is no objective clinical evidence of removal of semilunar cartilage. Therefore DC 5258 is not for application.
A noncompensable evaluation for limitation of motion of the knee is assigned where extension is limited to five degrees or flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Under DC 5260, flexion limited to 45 degrees is rated as 10 percent disabling, while flexion limited to 30 degrees is 20 percent disabling and flexion limited to 15 degrees is 30 percent disabling. Under DC 5261, extension limited to 10 degrees is rated as 10 percent disabling; extension limited to 15 degrees is 20 percent disabling; extension limited to 20 degrees is 30 percent disabling; extension limited to 30 degrees is 30 percent disabling; and extension limited to 45 degrees is 50 percent disabling.
Normal extension of the knee is to zero degrees. 38 C.F.R. § 4.71, Plate II. Normal flexion is 140 degrees. Id. According to these criteria, the appellant has always demonstrated normal extension (zero degrees) in her left knee. The appellant has demonstrated limitation of flexion in the left knee; her left knee flexion, as reflected in the clinical evidence, was limited at worst to 100 degrees with pain. Thus, noncompensable evaluations would be warranted pursuant to DCs 5260 and 5261.
Other factors to consider are the degree of limitation of motion that the appellant has, which in this case is slight loss of flexion, and which is expected during flare-ups or with increased use, and the degree of pain she has. With increasing levels of pain, concomitantly increasing degrees of muscle spasm, weakness, atrophy, inability to function, and the like, are expected. 38 C.F.R. §§ 4.40, 4.45, 4.59. In this case, chronic pain was reported in the left knee. No muscle atrophy due to the knee disability has been demonstrated in the left leg. There is no clinical evidence of any muscle spasm. The objective medical evidence does show findings of joint line tenderness, crepitation and slight limitation of motion in the left knee, as well as complaints of pain, weakness, stiffness and pain on use.
It is again noted that a left knee rating has been assigned based on impairment of the knee with slight subluxation at most and based on the limitation of functional ability due to pain during flare-ups and increased use and the limitation of motion, and the complaints of pain that have been clinically documented over the past few years. The findings needed for the next higher evaluation for the left knee disability are not demonstrated in the evidence of record at any point.
Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, supra, the Board is required to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation-of-motion diagnostic codes. Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). However, under Spurgeon v. Brown, 10 Vet. App. 194 (1997), the Board is not required to assign a separate rating for pain alone. The Board recognizes the limitations that the appellant has as a result of her service-connected left knee disability, but the disability evaluation currently assigned contemplates these limitations, as discussed above. In addition, the VA examiners stated that repetitive motion and flare-ups did not cause any additional limitation of motion in the range of motion of her left knee beyond what is considered above. There was no weakness, fatigue, lack of endurance or loss of coordination of the left knee after repetitive motion testing.
The Board notes at this junction that the appellant also has surgical scarring related to her service-connected left knee disability. Therefore, consideration will also be given to whether a separate compensable evaluation is warranted for the associated scarring.
The schedule of ratings for scars is found at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805. Diagnostic Code 7800 pertains to disfigurement of the head, face or neck; this code is not for application for the left knee scarring.
Diagnostic Code 7801 provides that scars other than head, face, or neck, that are deep or that cause limited motion will be rated 10 percent disabling if the area exceeds 39 sq. cm. A 20 percent evaluation will be assigned if the area exceeds 77 sq. cm. If the area involved exceeds 465 sq. cm., a 30 percent evaluation will be assigned. A 40 percent disability will be warranted if the area exceeds 929 sq. cm.
Diagnostic Code 7802 pertains to scars, other than head, face, or neck, that are superficial and nonlinear. Specifically, under DC 7802, a 10 percent rating is warranted for an area or areas of 144 square inches (929 sq. cm.) or greater. This is the highest rating available under this code.
Under Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are unstable or painful.
Under Diagnostic Code 7805, scars may also be rated based on disabling effects not considered in the scar codes.
The notes pertaining to these regulations (re-numbered) are shown below:
(1) Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25.
(2) A deep scar is one associated with underlying soft tissue damage.
(3) A superficial scar is one not associated with underlying soft tissue damage.
The appellant underwent a VA medical examination in March 2009. The examiner noted the presence of surgical scarring proximal to the patella. The scar was 3.5 centimeters (cm) in length and 2 millimeters (mm) in width. The scar was not tender; it was freely moveable with no elevation or depression and no keloid formation. The scar was stable and it was hypopigmented. There was no effect on knee function from the scar.
Based on these clinical findings, a compensable rating is not warranted for the left knee surgical scarring under Diagnostic Codes 7800 to 7805. The scarring is not deep and is rather small in size. Furthermore, there is no limitation of function associated with the left knee scarring.
In sum, the preponderance of the evidence is against the claim for an evaluation in excess of 20 percent. In arriving at the above conclusions, the Board has considered the history of the appellant's disability, as well as the current clinical manifestations and the effect this disability may have on the earning capacity of the Veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2008). The nature of the original disability has been reviewed, as well as the functional impairment that can be attributed to pain and weakness. Nevertheless, the Board has found that an increased rating, including based on the considerations of the DeLuca case, is not appropriate for the left knee disability. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra, at 204-7.
Notwithstanding the above discussion, an increased evaluation for the left knee disability could be granted if it were demonstrated that the particular disability presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Given the appellant's complaints associated with employment, the Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008).
However, the record reflects that the appellant has not required any hospitalization for her left knee during the claim/appeal period, and that the manifestations of the left knee disability are not in excess of those contemplated by the currently assigned rating. Furthermore, although the appellant experiences occupational impairment, there is no indication in the record that the average industrial impairment from the left knee disability would be in excess of that contemplated by the currently assigned rating. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun v. Peake, 22 Vet. App. 111, 115 (2008).
The Board finds no evidence that the left knee disability presents such an unusual or exceptional disability picture as to require an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b). As discussed above, there are higher ratings available for knee disabilities, but the required manifestations have not been shown in this case. The appellant has not offered any objective evidence of any symptoms due to the left knee disability that would render impractical the application of the regular schedular standards. Consequently, the Board concludes that referral of this case for consideration of an extraschedular rating is not warranted in this case. See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996) (when evaluating an increased rating claim, it is well established that the Board may affirm an RO's conclusion that a claim does not meet the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or may reach such a conclusion on its own).
In this case, the various symptoms described by the appellant fit squarely within the criteria found in the relevant diagnostic codes for knee disabilities. In short, the rating criteria contemplate not only her symptoms but the severity of her left knee disability. For these reasons, referral for extraschedular consideration is not warranted.
The Board acknowledges that the appellant, in advancing this appeal, believes that her left knee disability is more severe than the assigned disability rating reflects. Medical evidence is generally required to probatively address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, supra. However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).
The Board has carefully considered the appellant's contentions and arguments. In this case, however, the competent medical evidence offering detailed descriptions of the left knee symptomatology and specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of each one of the knee disability-related symptoms. The preponderance of the most probative evidence does not support assignment of any higher rating.
Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through his senses. Layno, 6 Vet. App. at 470. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). In this case, the grant of the 20 percent evaluation was based in part on the Veteran's reports about her left knee symptomatology. She is not, however, competent to identify a specific level of compensable disability according to the appropriate diagnostic code. The same analysis holds true for the statements of the Veteran's representative.
Such competent evidence concerning the nature and extent of the left knee disability has been provided by the private and VA medical personnel who have examined the Veteran during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and treatment notes) directly address the criteria under which the appellant's left knee disability has been evaluated.
The Board has carefully considered the appellant's contentions and arguments; however, the competent medical evidence offering detailed descriptions of the symptoms associated with the left knee disability and specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating whether an increased evaluation is warranted. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the symptoms associated with the left knee disability on appeal. The preponderance of the most probative evidence does not support assignment of any higher rating. The findings needed for the next higher evaluations are not currently demonstrated. Because the preponderance of the evidence is against the appellant's left knee claim, the benefit-of-the-doubt doctrine is inapplicable. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).
A decision of the Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.
As reflected in the decision above, the Board did not find variation in the appellant's symptomatology or clinical findings for the manifestations of the left knee disability that would warrant the assignment of any staged rating, as the Court has indicated can be done in this type of case. The Board did not find any variation in the clinical manifestations of the left knee disability at any point during the appellate period. Based upon the record, the Board finds that at no time during the claim/appellate period has the left knee disability been more disabling than as currently rated.
ORDER
Entitlement to an evaluation in excess of 20 percent for left knee disability is denied.
REMAND
A determination has been made that additional evidentiary development is necessary. Accordingly, further appellate consideration will be deferred; this case is remanded to the AMC/RO for action as described below.
The evidence of record indicates that the appellant suffered two miscarriages while she was on active duty. Both she and her former husband have stated that these miscarriages caused the appellant emotional damage at the time which has continued to the present. Post-service, the appellant has been diagnosed with depression and bipolar disorder, and her VA mental health care provider has addressed the miscarriages in therapy. In addition, the report of the VA medical examination conducted in May 2010 indicates that the appellant's chronic daily left knee pain and inability to use her leg appropriately affects both her mood and her ability to enjoy simple activities.
The appellant has not been afforded a VA psychiatric examination. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Here, there is lay evidence of record to indicate that the appellant displayed symptoms possibly related tocurrently claimed psychiatric disabilitywhile she was in service, which have continued to the present. The appellant has presented written statements and testimony to that effect. VA treatment records reveal various psychiatric diagnoses and a possible link to service. In light of the existence of credible evidence of continuity of symptoms capable of lay observation, and that the appellant may have had manifestations of the claimed psychiatric disorder in service or within one year of service, the Board finds that the duty to assist in this case requires that a psychiatric evaluation should be obtained on remand.
When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In addition, judicial interpretation of the matter of secondary service connection as embodied in 38 C.F.R. § 3.310 requires consideration of whether service-connected disability either causes or aggravates another condition. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (when aggravation of a non-service- connected condition is proximately due to or the result of a service-connected condition, a veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). There is no indication that the RO considered any application of section 3.310 or the Allen decision to the question of whether any service-connected disability is, or has been, the cause of any of the appellant's psychiatric pathology. Further development of the medical evidence relating to secondary service connection is necessary, and adjudication on this basis is therefore indicated.
These considerations require the gathering of medical records and further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).
Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the RO for the following:
1. Ensure that all notification and development action required by statutes, regulations, and any applicable legal precedents has been completed.
2. Contact the appellant to obtain the names and addresses of all VA, private, or other government psychiatric care providers and treatment centers where she has been treated for any psychiatric condition, including depression and bipolar disorder, since service. After securing the necessary release(s), obtain those records that have not been previously secured. In particular, all VA inpatient and outpatient treatment records (not already in the file) should be obtained.
3. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and her representative should also be informed of the negative results and be given opportunity to secure the records.
4. After completing any additional notification and/or development action deemed warranted by the record, schedule the appellant for a VA psychiatric evaluation to determine the nature, onset date and etiology of any current psychiatric or psychological pathology, and whether it is linked to the Veteran's active service.
The examining psychiatrist, after examination of the Veteran and review of her entire medical history, to include in-service and post-service medical reports, should provide an opinion as to the diagnosis and etiology of any current psychiatric disorder(s), and reconcile all previous psychiatric diagnoses documented in the records. The psychiatrist should also offer an opinion as to the onset date of the appellant's psychiatric condition(s), if any. If the examiner finds that a psychiatric disorder is causally related to service, to the extent possible, the psychiatrist should indicate the historical degree of impairment due to any psychiatric disorder found to be related to service, as opposed to that due to other causes, if any, such as other psychiatric disorders, personality defects and/or non-service-connected physical disabilities.
In particular, the psychiatrist should offer an opinion, with degree of medical probability expressed, as to whether the cause or etiology of the appellant's psychiatric disorder(s) is (are) attributable to, or related to, any disease or incident suffered during service, any disease or incident suffered prior to service, any disease or incident suffered after service, or to a combination of such causes or some other cause or causes.
The psychiatrist should identify all mental disorders which have been present, and distinguish conditions which are acquired from conditions which are of developmental or congenital origin, if any. The opinion should reflect review of pertinent material in the claims file. The psychiatrist should integrate the previous psychiatric findings and diagnoses with current findings to obtain a true picture of the nature of the Veteran's psychiatric status. If there are different psychiatric disorders, the psychiatrist should reconcile the diagnoses and should specify which symptoms are associated with each of the disorders. The findings of all pertinent psychological and neuropsychological testing should be discussed.
Specifically, the examiner must address the questions of:
a. Whether the Veteran's current psychiatric pathology is causally or etiologically related to her period of military service, including the two miscarriages or to some other cause or causes. (It is not necessary that the exact causes - other than apparent relationship to some incident of service - be delineated.);
b. Whether the appellant's current psychiatric pathology is related to symptoms or signs she may have manifested in service (June 1989 to August 1992);
c. Whether the appellant's current psychiatric pathology is related to symptoms and signs that may have occurred within one year after her service separation in August 1992; and
d. If the onset of any of the claimed psychiatric conditions was not during the Veteran's active service from June 1989 to August 1992, is any portion of the Veteran's current claimed pathology causally or etiologically related to any service-connected disability, including by way of aggravation?
Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.
Note: In assessing the relative likelihood as to origin and etiology of the conditions specified above, the examiner should apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed disorder is causally or etiologically related to the Veteran's active service, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report.
Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
Note: If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's psychiatric pathology. See Jones v. Shinseki, 23 Vet. App. 383 (2010).
5. Upon receipt of the VA examining physician's report, conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, the AMC/RO must refer the report to the VA examining physician for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.).
6. After completing any additional notification and/or development action deemed warranted by the record, review the record again, including any newly acquired evidence, and re-adjudicate the issue on appeal. Ensure that direct, presumptive, aggravation, and secondary theories of service connection are considered.
7. If the benefit sought on appeal remains denied, the appellant and her representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response.
The appellant is hereby notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified.
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs